This case requires that we decide if the public-duty doctrine should still be recognized in Michigan and, if it should, to define the limits of the special-relationship exception to that doctrine as applied to police officers. We conclude that the public-duty doctrine remains valid in Michigan. We also conclude that the most appropriate special-relationship test for examining the relationship between police officers and private individuals is the test

articulated by the New York Court of Appeals in Cuffy v City of New York, 69 NY2d 255; 513 NYS2d 372; 505 NE2d 937 (1987).

I

Facts

This case comes to us to consider defendant’s motion for summary disposition alleging a failure “to state a claim on which relief can be granted.” MCR 2.116(C)(8). Therefore, for purposes of deciding if the lower courts correctly ruled on the motion, we accept all well-pleaded facts in plaintiff’s complaint as true. Wade v Dep’t of Corrections, 439 Mich 158, 162-163; 483 NW2d 26 (1992).

Plaintiff alleges that defendant, Detroit Police Officer Keith D. Beasley, was grossly negligent when he responded to a telephone call requesting aid on behalf of decedent, Phoebe Obleton. At 12:30 a.m., on Tuesday, October 9, 1990, through the decedent’s bathroom window, her neighbors saw her husband attack her. They also heard the decedent screaming for help. Responding to the situation, two of the neighbors telephoned Detroit’s 911 emergency dispatch service requesting emergency assistance on behalf of decedent. Further calls to 911 followed. Finally, at 12:40 a.m., neighbors placed a direct call to the local police station.

At 1:30 a.m., Officer Beasley and another police officer arrived at the decedent’s residence.[1] Decedent’s neighbors

met the officers, explained that they had seen the decedent’s husband attacking her, communicated that they heard her scream for help, and informed the officers of her apartment number. The complaint alleges that, in response, the officers, “after taking down the witnesses’ names, simply circled the building and left without ever attempting to knock on Plaintiff decedent’s apartment door, or make any attempt to contact Plaintiff decedent or determine if, in fact, she was being or had been attacked.”

At 4:15 a.m., the decedent’s husband telephoned Detroit’s 911 service to report that he had stabbed his wife to death. At 4:50 a.m., three hours and twenty minutes after Officer Beasley arrived outside the decedent’s residence, she died.

Sheila White, as personal representative of the decedent’s estate, filed a suit against the City of Detroit, the City of Detroit Police Department, the 911 operator, and both responding police officers. The trial court dismissed the claims against the city and the police department on the basis of governmental immunity. The 911 operator and defendant Officer Beasley moved for summary disposition for failure “to state a claim on which relief can be granted.” MCR 2.116(C)(8). Defendants relied exclusively on the public-duty doctrine, arguing that they owed a duty to the public only, not to the decedent as an individual. The trial court denied their motion.

The Court of Appeals reversed with respect to the 911

operator.[2]206 Mich App 459, 462; 522 NW2d 681 (1994). It reasoned that the public-duty doctrine applied to the 911 operator and that the relationship between the decedent and the 911 operator was too attenuated to satisfy the special-relationship exception to the public-duty doctrine. Id. However, it upheld the trial court’s denial of summary disposition for Officer Beasley. Id. at 466. It found that defendant’s arrival at the crime scene was sufficient to satisfy the special-relationship exception to the public-duty doctrine. Id. at 462. Defendant appealed to this Court.

Defendant’s appeal places two issues squarely before this Court. First, because we have not yet addressed the issue, we must decide if the public-duty doctrine is viable in Michigan. Second, provided that we accept the existence of the public-duty doctrine, we must also define the limits of the doctrine’s special-relationship exception when applied to police officers.[3]

II

The Public-Duty Doctrine

We hold that the public-duty doctrine applies in Michigan. As defined by Justice Cooley, the public-duty doctrine provides

[t]hat if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or

erroneous performance, must be a public, not an individual injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages. [2 Cooley, Torts (4th ed), § 300, pp 385-386.]

Currently, the public-duty doctrine is under attack because some commentators believe that the doctrine unjustifiably creates inequitable and harsh results for plaintiffs. The doctrine has an “all or nothing” character that may deny a plaintiff recovery just because the tort was committed by a public, rather than a private, employee. The problems stemming from the doctrine’s “all or nothing” character are compounded by the lack of guidance in defining which duties are public and which are specific individual duties. Partly on the basis of these concerns, some courts have abandoned the public-duty doctrine altogether.[4] See, e.g., Ryan v State, 134 Ariz 308, 310; 656 P2d 597 (1982), and Leake v Cain, 720 P2d 152, 159 (Colo, 1986). While the

inequitable and harsh results created by the doctrine are a significant concern when the doctrine is applied to most government employees, we conclude that the dangerous work environment inherent in police activities is a counterbalancing concern when the doctrine is applied to police officers, as will be discussed in part III of this opinion.

Otherwise, there are two basic justifications for retaining the public-duty doctrine. First, the doctrine protects governments from unreasonable interference with policy decisions, and, second, it protects government employees from unreasonable liability.

We agree that the public-duty doctrine serves a useful purpose by protecting governments from unreasonable interference with policy decisions. As noted by the Supreme Court of Illinois, while deciding a suit alleging that the failure to enforce the City of Chicago’s housing code led to a child’s injury,

If the failure of the city to enforce [an] ordinance should render it liable for injuries sustained thereby, the tremendous exposure to liability would certainly dissuade the city from enacting ordinances designed for the protection and welfare of the general public, and thereby the general public would lose the benefit of salutary legislative enactments. [Stigler v Chicago, 48 Ill 2d 20, 24-25; 268 NE2d 26 (1971).]

We find the reasoning of the Supreme Court of Illinois persuasive. A convincing justification for the continued recognition of the public-duty doctrine is its purpose of shielding governmental units from liability “when its employees act, or refuse to act, so as to conform to a

Further, tort liability should not be based on statutes and ordinances that are not traditionally relied on to impose liability or do not themselves specifically expose government employees to liability. Such liability may also deter the governmental entity from enacting protective legislation, fearing that the added cost of employee liability will eventually be borne by the governmental entity. Additionally, we note that mechanisms besides the threat of liability in negligence exist to hold employees accountable for failure to conform to statutes and ordinances. See Ezell v Cockrell, 902 SW2d 394, 398 (Tenn, 1995).

Similarly, we agree that the public-duty doctrine is justified to the extent that it clarifies that a government employee’s job title alone does not create a duty between the employee and specific members of the public. For example, police officers should not be liable for insuring the general public’s welfare just because their job title lists them as “police officers.” Police officers should not be liable “for failing to protect a member of the general public from a criminal act of which they were not aware but should have anticipated and prevented ….” De Long v Erie Co, 60 NY2d 296, 304; 469 NYS2d 611; 457 NE2d 717 (1983).

Further, we agree that

[f]or the courts to proclaim a new and general duty of protection in the law of tort, even to those who may be the particular seekers of protection based

on specific hazards, could and would inevitably determine how the limited police resources of the community should be allocated and without predictable limits. [Riss v City of New York, 22 NY2d 579, 581-582; 240 NE2d 860 (1968).]

Therefore, we agree that the public-duty doctrine should shield a government employee from liability that is based solely on that employee’s particular job title.

In conclusion, we find that the public-duty doctrine still serves several useful purposes. The government should be protected from unreasonable interference with policy decisions. Government employees should enjoy personal protection from tort liability based on their action in conformity with, or failure to conform to, statutes or ordinances not intended to create tort liability. The job titles of government employees alone should not create a duty to specific members of the public. Therefore, we adhere to the public-duty doctrine in Michigan to the extent that the doctrine achieves these objectives.

III

The Special-Relationship Exception

The special-relationship exception to the public-duty doctrine exposes a government employee to liability for the employee’s actions whenever a court finds that the government employee has a “special-relationship” with the plaintiff. Sawicki, 37 Ohio St 3d 230. Whether or not the employee has a “special-relationship” with the plaintiff is determined by the specific test applicable in that state. A survey of special-relationship tests reveals deep disagreement among the states regarding the exact nature of the “special-

The only special-relationship test adopted in more than one state is the test adopted by the New York Court of Appeals in Cuffy, supra at 260. The Cuffy test has also been adopted in Ohio and, with modification,[6] in Georgia. Sawicki, 37 Ohio St 3d 232; City of Rome v Jordan, 263 Ga 26, 29; 426 SE2d 861 (1993). The elements of the Cuffy test are:

(1)

an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured;

(2)

knowledge on the part of the municipality’s agent that inaction could lead to harm;

(3)

some form of direct contact between the municipality’s agents and the injured party; and

We recognize that this test is somewhat arbitrarily restrictive. On first glance the test reads more like a test for promissory estoppel under contract law than a test for a

special relationship in tort. However, we also recognize that police officers are employed to work in a “milieu of criminal activity where every decision is fraught with uncertainty.” Ezell, 902 SW2d 398. Because of the unusual and extraordinary nature of police work it is unfair to allow “a jury of laymen with the benefit of 20/20 hindsight to second-guess the exercise of a policeman’s discretionary professional duty.” Shore v Stonington, 187 Conn 147, 157; 444 A2d 1379 (1982).

The test articulated in Cuffy responds to these concerns by insulating police officers from liability arising from their tortious on the job conduct in almost all instances where a plaintiff alleges a failure to provide police protection. Yet, the test also provides plaintiffs some relief in the particularly egregious case of an officer promising police protection, but negligently carrying out that promise. Although this test may deny recovery to some deserving plaintiffs, we prefer to be cautious when exposing police officers to on the job liability. Police officers must work in unusual circumstances. They deserve unusual protection. Therefore, at least when applied to police officers, we would adopt the Cuffy special-relationship test.

IV

Justice Levin’s Dissent

In his dissent, Justice Levin argues that this Court is compelled to abandon the public-duty doctrine for two reasons: because it is not a part of the law of this state and because the doctrine is inconsistent with MCL 691.1407(2); MSA

3.996(107)(2). We conclude that the dissent overstates the argument. This Court is free to abandon the public-duty doctrine, but not compelled to do so.

First, the public-duty doctrine is a part of the law of this state. In recent years the Court of Appeals has consistently relied on the doctrine.[7] Admittedly, before this case, this Court has not chosen to recognize the doctrine, but that is not sufficient grounds to ignore Court of Appeals precedent. This Court’s previous failure to recognize the public-duty doctrine simply leaves open the question whether this Court should adopt the doctrine. It does not prevent this Court from adopting the doctrine.

On the other hand, what is not a part of the law of this state is the recognition of any duty in tort on the part of the police “under state law and the Charter of the City of Detroit to protect the public.”[8] Slip op at 24. Fiser v City

of Ann Arbor, 417 Mich 461; 339 NW2d 413 (1983), relied on by the dissent, simply recognizes that, where the Legislature has provided an exception to statutory immunity, the police are subject to the same tort concepts affecting liability faced by private individuals. In this state, as in all other states that we are aware of, police are not subject to greater tort liability than would be faced by any other member of society with similar training, knowledge, and skill.

Similarly, we conclude that the dissent has confused the term “duty” as used in the former text of MCL 92.4; MSA 5.1752 with the concept of duty as an element of tort law. Aside from tort law, “duty” also means any “action or a task required by one’s position or occupation.” Random House College Dictionary: Revised Edition. It is in this sense that MCL 92.4; MSA 5.1752 enumerates the tasks and powers assigned to police officers. The Legislature never intended MCL 92.4; MSA 5.1752 to impose a duty in tort.

Second, we disagree with Justice Levin’s assertion that the public-duty doctrine is a doctrine of governmental immunity. Instead, we conclude that the public-duty doctrine is a doctrine of tort law. See Sawicki, 37 Ohio St 3d 230.

The doctrine determines whether a duty in tort exists, not whether an individual is immune from an otherwise existing tort duty. Accordingly, it is part of tort law. As a result, the public-duty doctrine is consistent with 1986 PA 175, MCL 691.1407(2); MSA 3.996(107)(2), and neither Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984),[9] nor 1986 PA 175 compels this Court to abandon the doctrine.

V

Application of the Public-Duty Doctrine

With the public-duty doctrine and its special-relationship exception defined, we must now decide whether summary disposition was appropriate in the case before us. We conclude that it was. We employ a two-part analysis to reach this conclusion.

First, we conclude that the public-duty doctrine shields the officer from liability for the charged conduct. Plaintiff’s complaint alleges a failure to provide police protection. Therefore, unless the facts of this case fit the special-relationship exception, the public-duty doctrine instructs that the officer did not owe a duty in tort to any individual, including decedent. Second, we find that the facts in this case do not establish a special relationship

between the officer and decedent. Employing the newly adopted special-relationship test, we conclude plaintiff has failed to allege at least two of the elements necessary to the establishment of a special relationship.

First, plaintiff did not allege facts sufficient to suggest that there was direct contact between the police officer and decedent. There is no allegation of direct contact before the attack, and during the attack decedent only succeeded in contacting her neighbors—not the police. Second, plaintiff failed to suggest that decedent justifiably relied on any affirmative action taken by the police department. Because decedent never directly contacted the police, she had no knowledge of a promise on which she could rely.

Further, any argument that she relied on the police officer because she knew that it was the officer’s “duty” to aid victims of crime runs contrary to our rationale for adopting the public-duty doctrine itself. Such an argument is tantamount to arguing that a tort duty can be established solely on the basis of defendant’s job title. Because we adopted the public-duty doctrine in part to protect government employees from liability based solely on their job title, we refuse to allow the exception to contradict the rule.

Therefore, plaintiff has failed to allege facts sufficient to satisfy the special-relationship exception. Under the public-duty doctrine, the police officer did not owe a duty in tort to decedent, an individual. As a result, plaintiff has failed to state a claim on which relief can be

granted. Accordingly, we would reverse the Court of Appeals and remand the case to the trial court for entry of an order granting defendant’s motion for summary judgment.

Riley and Weaver, JJ., concurred with Brickley, C.J.

S T A T E O F M I C H I G A N

SUPREME COURT

SHEILA WHITE, Personal Representative

of the Estate of Phoebe Obleton,

Deceased,

Plaintiff-Appellee,

v ———– No. 101350

KEITH D. BEASLEY,

Defendant-Appellant,

and

HOPE HUMBERT and RONALD JOHNSON,

Defendants.

BOYLE, J. (concurring).

I concur in the lead opinion to the extent it holds that the waiver of sovereign immunity under MCL 691.1407; MSA 3.996(107) does not create a duty where none existed before and that “[a]pplied to police officers, the public-duty doctrine insulates officers from tort liability for the negligent failure to provide police protection unless an individual plaintiff satisfies the special-relationship exception.” Slip op at 5. I also agree with the adoption by the lead opinion of the test in Cuffy v City of New York[1] for cases of nonfeasance. The special-relationship exception is in essence a variation of the special-relationship standard of

traditional negligence law that recognizes that where a “defendant has gone so far in what he has actually done, and has got himself into such a relation with the plaintiff, that he has begun to affect the interests of the plaintiff adversely,” Prosser & Keeton, Torts (5th ed), § 56, p 375, the line between active and passive conduct has been crossed and social policy justifies recognition of a duty.

I disagree with broader language in the lead opinion suggesting that the public-duty doctrine applies when an officer’s affirmative misconduct causes harm. This inquiry is different from the question whether, under the common law, the officer was liable for misfeasance and whether MCL 691.1407; MSA 3.996(107) definitively sets forth the parameters for such a cause of action against police officers, slip op at 20-21 (Levin, J.). The facts of this case do not require us to resolve whether the public-duty doctrine should be applied to insulate government agents who have assumed a duty and whose affirmative misconduct causes harm.

This case is before us on a motion for summary disposition brought pursuant to MCR 2.116(C)(8). Under the rule, summary disposition is granted if the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Plaintiff’s claim is tested by the pleadings alone, and all factual allegations contained in the complaint must be accepted as true. Simko v Blake, 448 Mich 648, 654; 532 NW2d 842 (1995). In this case, plaintiff’s factual allegations in the complaint are, in pertinent part:

)… arrived upon the scene and were met by . . . decedent’s neighbors who explained that [decedent] was in apartment #203, that she had been screaming for help and that they witnessed her being attacked through her bathroom window.

. . . That Defendant Police Officers, after taking down the witnesses’ names, simply circled the building and left without ever attempting to knock on . . . decedent’s apartment door, or make any attempt to contact . . . decedent or determine if, in fact, she was being or had been attacked.

* * *

That . . . decedent died . . . three hours and twenty minutes after Defendant[] Detroit Police Officers had arrived on the scene and failed to take action.

Plaintiff alleged in the complaint that this inaction by defendant police officers was grossly negligent, stating:

In Defendants [sic], Detroit Police Officers, failing to attempt to ascertain . . . decedent’s condition, or to render assistance in any way whatsoever when at the scene, and having been informed that . . . decedent had been under attack in her apartment shortly before their arrival;

* * *

In Defendant officers [sic] negligently failing to take any actions whatsoever to render assistance to . . . decedent after being apprised that there was a woman, in an identified apartment, screaming for help because her husband was about to kill her.

Clearly, plaintiff is not alleging that defendant Beasley’s affirmative actions caused the harm. Rather, plaintiff asserts that his inaction

(___

)his failure to render assistance

(___

)led to the harm. This is a crucial difference. As we stated in Williams v Cunningham Drug Stores, Inc, 429

Mich 495, 498-499; 418 NW2d 381 (1988):

In determining standards of conduct in the area of negligence, the courts have made a distinction between misfeasance, or active misconduct causing personal injury, and nonfeasance, which is passive inaction or the failure to actively protect others from harm. The common law has been slow in recognizing liability for nonfeasance because the courts are reluctant to force persons to help one another and because such conduct does not create a new risk of harm to a potential plaintiff. Thus, as a general rule, there is no duty that obligates one person to aid or protect another.

Thus, the Court in Williams concluded that for a person to be liable for nonfeasance, there must be a “special relationship” that imposes a duty to protect the other. 429 Mich 499. Although the issue in Williams involved a private citizen’s failure to prevent a criminal assault, the Court’s observation applies here. Neither police officers nor private citizens have a duty to rescue at common law. Prosser & Keeton, supra, § 56, p 373 ff. Where liability has been imposed for nonfeasance, it has been on the basis of recognizing an affirmative duty to act based on a special relationship between the plaintiff and the defendant. Id. at 373. An allegation that an officer failed to rescue someone in danger is a charge that an officer has not fulfilled a sworn duty as an officer. MCL 752.11; MSA 28.746(101). However, as Justice Cavanagh correctly observes, executive decisions regarding use of resources in protection of the general public is of such overarching public importance that declining to impose an affirmative duty under this aspect of the public-duty doctrine continues to serve a vital social purpose. Whether to apply the public-duty doctrine where active misconduct causes a

person’s injury, however, is a more difficult question.

Review of the special-relationship test found in Cuffy v City of New York and adopted by this Court today, suggests that it is meant to apply only in cases of nonfeasance. Cuffy explains that its special-relationship test is an exception to the general rule that “a municipality may not be held liable for injuries resulting from a simple failure to provide police protection . . . .” Id. at 260 (emphasis added). The test allows liability to be imposed on a municipality in the narrow circumstance where there is direct contact between a citizen and an officer, an officer assumes an affirmative duty to act, knows that inaction could lead to harm, and the citizen justifiably relies on the officer’s affirmative undertaking. The test, by its own terms, can only be applied in an instance where the officer failed to carry out a promise or an assumed duty to act.

This case, of course, does not involve active misfeasance. At most, defendant Beasley’s passive inaction could be said to be inconsistent with his duty to prevent crime or to provide police protection. While the result in this case is harsh, a contrary result could lead to officers arresting (and detaining) all persons who might conceivably jeopardize a foreseeable plaintiff. Because the specific holding of the lead opinion strikes the appropriate public policy balance, I agree that the public-duty doctrine applies. I also agree that plaintiff’s complaint fails to satisfy the Cuffy special-relationship test. While the line between nonfeasance and misfeasance is admittedly imprecise, I would

explicitly hold that we do not decide the question of the applicability of the public-duty doctrine to affirmative misconduct.

S T A T E O F M I C H I G A N

SUPREME COURT

SHEILA WHITE, Personal

Representative of the Estate of

PHOEBE OBLETON, deceased,

Plaintiff-Appellee,

v ———– No. 101350

KEITH D. BEASLEY,

Defendant-Appellant,

and

HOPE HUMBERT and RONALD JOHNSON,

Defendants.

BEFORE THE ENTIRE BENCH

CAVANAGH, J. (concurring in part and dissenting in part).

I agree with the lead opinion that the public-duty doctrine serves a useful function and should be continued. However, I dissent from the lead opinion’s definition of the special-relationship exception to the public-duty doctrine. I would also limit the scope of this opinion to only those cases in which liability is alleged on the basis of the police officer’s failure to protect an individual from the actions of a third party. This case should have no bearing in a case involving an injury caused by the police officer’s own actions.

The “duty to provide police protection . . . is vested in the government by constitution and statute.” Williams v

Cunningham Drug Stores, 429 Mich 495, 501; 418 NW2d 381 (1988). The Legislature has provided that government officers and employees are immune from tort liability while engaged in governmental functions if they are acting or reasonably believe they are acting within the scope of their authority and their conduct falls short of gross negligence. MCL 691.1407(2); MSA 3.996(107)(2). However, before reaching any issue of breach, causation, or damages, the first question in any negligence action involves duty. “Duty exists because the relationship between the parties gives rise to a legal obligation.” Bertrand v Alan Ford, Inc, 449 Mich 606, 614; 537 NW2d 185 (1995), citing Moning v Alfono, 400 Mich 425, 438-439; 254 NW2d 759 (1977).

The public-duty doctrine begins with the premise that police officers[1] owe a duty to the public to investigate crime and to protect the citizenry because they are police officers. Further, the public-duty doctrine recognizes that police officers and their departments must make discretionary or policy decisions in order to carry out the duties imposed on them.[2] For instance, a police station may receive several distress calls at once, and, because of limited resources, must assign a priority to those calls. The legal tort system

is ill-equipped to second-guess a discretionary decision to prioritize calls in order of perceived need and availability of officers to respond. Evaluations of the propriety of decisions such as budgetary items, training, equipment, procedures, and response techniques, are best left to the other branches of government. Cuffy v City of New York, 69 NY2d 255, 260; 513 NYS2d 372; 505 NE2d 937 (1987) (“a municipality’s provision of police protection to its citizenry has long been regarded as a resource-allocating function that is better left to the discretion of the policy makers”). Accordingly, the public-duty doctrine precludes basing tort liability solely on the obligations owed by police officers to the public at large.[3]

Nevertheless, the special-relationship exception to the public-duty doctrine is based on the recognition that there are situations in which discretionary or policy decisions are no longer at issue because the decision to assist a particular individual has already been made. The issue then becomes whether the police officer’s connection to a particular individual has created an actionable special and identifiable obligation to render assistance to that individual. Indeed, the common theme underlying all the various definitions of special relationship explored by the lead opinion is an

attempt to test the validity of this connection. When the connection is strong enough so that a relationship between the police officer and the victim arises that is distinct from the relationship between the police officer and the public at large, the courts will impose a special duty.[4] However, I believe that the Cuffy test adopted by the lead opinion places unfair obstacles before the potential plaintiffs who were the most helpless and the victims of crime most at risk.

The Cuffy test requires two primary elements: direct contact and justifiable reliance. I agree that the “contact” element serves a useful function in most situations. In order for tort liability to attach to a grossly negligent response to the plaintiff’s peril, the police officer first must have been made aware that the victim may have been in peril. This would normally be accomplished through a call for assistance. However, I would not require the victim himself to have placed the call. Such a rule results in a perverse sliding scale where the more helpless the victim, the more likely that the officer can act, or fail to act, with impunity. For instance, a kidnapping victim should not be denied tort damages solely because he could not personally dial 911. Accordingly, I would eliminate the adjective “direct.” I would hold that in

order to establish the contact element of the special-relationship exception, the plaintiff would have to prove that he, or someone on his behalf, contacted the police.[5]

Here, the victim allegedly called out to her neighbors to call the police, and they did so, on her behalf. I would hold that the contact element has been sufficiently established in the plaintiff’s pleadings to survive summary disposition under MCR 2.116(C)(8).

My more serious disagreement with the Cuffy test is with the “reliance” element. Although the “justifiable reliance” requirement may work satisfactorily with respect to an obligation to protect an individual from future harm, when strictly applied to crimes in progress, it can lead to harsh and seemingly unjust results. The Cuffy test leads to an odd unjust result where the victim least able to help himself, that is, least able to change the course of his actions, is the one least able to “rely” on the police officer’s obligation to help him.[6] Instead, I believe that the special-relationship test should flow from the time-honored and fundamental tort principle that people owe a duty to foreseeable plaintiffs. I believe that a foreseeable- plaintiff requirement would make a more logical, flexible, and workable solution to situations where the crime was already in

progress at the time the police were contacted.

In such circumstances, I would hold that the plaintiff would have to prove that he was an identifiable foreseeable victim of a crime in progress by establishing the following elements:

(1) the officer actually arrived on the scene;

(2) the officer knew or should have known that an identifiable crime was in progress and that the plaintiff was or would be an identifiable victim;

(3) the officer should have reasonably foreseen that the identifiable victim would suffer further bodily harm if the officer did not intervene;

(4) the officer had the resources available on the scene to render assistance; and

(5) the officer’s intervention could have changed the outcome.

In such a case, the officer should owe a duty actionable in tort to the identifiable foreseeable victim.[7]

The justifiable reliance requirement is not all that different, and I would not oppose its use as an alternative theory. “Justifiable” implies that the police officer made a promise to the individual to protect him from some harm, which the police officer should reasonably have foreseen would have led to reliance. Reliance in turn means that the individual altered his course of action.[8] The promise that led to

justifiable reliance was no longer a policy or discretionary consideration whether or when to respond to the individual’s request for assistance because the decision to respond to the individual had already been made. At that point, it became an actionable special duty to the individual.

Similarly, when the police officer arrives at the scene of a crime in progress, there is no longer at issue a generalized discretionary or policy decision whether or when to respond to a call for assistance. The police officer has responded. At that point, the police officer faces a ministerial obligation to perform his police officer’s duty to protect this victim, who is in peril from this crime in progress, by using the specialized training and resources available to him as a police officer. If intervention could alter the outcome and prevent further bodily harm to the victim, then I believe that the police officer should have a special duty to this foreseeable identifiable victim that is actionable in tort.

Here, the plaintiff has alleged that Officer Beasley arrived at the scene and was informed by neighbors that they had seen and heard Phoebe Obleton being attacked by her husband. The plaintiff has further alleged that, as a result of Officer Beasley’s failure to perform his duties, the victim sustained severe stab wounds that caused her death more than three hours later. I would hold that the plaintiff has pleaded sufficient facts to establish that defendant Beasley owed a special duty to the plaintiff to survive the MCR 2.116(C)(8) motion for summary disposition.

I note that in order to succeed at trial, the plaintiff would still have to prove all these allegations and further would have to prove that the police officer’s actions were grossly negligent.

I would affirm the decision of the Court of Appeals.

Mallett, J., concurred with Cavanagh, J.

S T A T E O F M I C H I G A N

SUPREME COURT

SHELIA WHITE, Personal Representative

of the Estate of Phoebe Obleton,

Deceased,

Plaintiff-Appellee,

v ———– No. 101350

KEITH D. BEASLEY,

Defendant-Appellant,

and

HOPE HUMBERT and RONALD JOHNSON,

Defendants.

BEFORE THE ENTIRE BENCH

LEVIN, J. (dissenting).

In separate opinions, four of my colleagues conclude that this action cannot be maintained against the defendant police officers. Three justices, in separate opinions, would permit the plaintiff to maintain this action.

The lead opinion rules against the plaintiff on alternative grounds, stating that the officers owed no duty in tort, but, if there was a duty in tort, the action nevertheless cannot be maintained because a special relationship had not been established between the plaintiff’s decedent and the officers within the meaning of the special relationship exception to the public-duty doctrine.

A concurring justice so concludes on the alternative grounds that police officers do not have a duty to rescue at

common law, and that such nonfeasance cannot give rise to a special relationship within the meaning of the public-duty doctrine, and a failure to rescue can be described as within the ambit of “executive decisions regarding use of resources in protection of the general public….”[1]

Two justices, also expressing their views supportive of the viability of the public-duty doctrine, conclude that a special relationship was established within the meaning of that doctrine, and that the allegations in the complaint were sufficient to permit the issue of the officers’ gross negligence to be submitted to the jury.

It appears that the public-duty doctrine is being incorporated into the jurisprudence because of the dangerous working conditions facing police officers, a consideration not applicable to governmental employment generally. The immunity from tort liability for police officers created today by judicial opinion applies only for acts of nonfeasance, such as a failure to rescue, but the implications for the jurisprudence in appearing to adopt the public-duty doctrine may have far-reaching ramifications.

I

In Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 658-659; 363 NW2d 641 (1984), this Court declined to decide whether to adopt the public-duty doctrine. Today the Court adopts the public-duty doctrine without consideration of prior Michigan case law, indicating that the public-duty doctrine is not part of the law of this state, and without

consideration of 1986 PA 175, which amended §7 of the governmental tort liability act[2] in a manner that is inconsistent with recognition of a public-duty doctrine.

II

When Ross was decided, the governmental tort liability act did “not address whether or when individual officers, employees, and agents are immune from tort liability.”[3] This Court said: “Thus, the existence and scope of individual immunity continues to be a creature of judicial decision-making.” Id. at 629.

After further reviewing the intervening case law, the Court held that judges, legislators and the highest executive officials of all levels of government were absolutely immune from all tort liability when acting within their judicial, legislative, or executive authority. The Court declared that lower level officials, employees and agents were immune only when they were

1)acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority;

2)acting in good faith; and

3)performing discretionary, as opposed to ministerial acts.

Under this test, no individual immunity exists for ultra vires activities.

The Court then proceeded to define “discretionary” and “ministerial acts,” adding for clarity “the word ‘decisional,'” so the operative term would be “discretionary-decisional” acts.[5]

III

Within a year and a half, the Legislature responded to Ross with the enactment of 1986 PA 175. The House Legislative Analysis observed that the statute dealt with in Ross did not address officer-employee immunity, but traditionally those “individuals have been absolutely immune from tort liability when engaged in discretionary, as opposed to ministerial, acts within the scope of their authority.”[6] The House Analysis continued that “[t]wo 1979 Michigan Supreme Court decisions, however [undoubtedly Bush v Oscoda and Lockaby v Wayne Co], confused the issue by tending to define individual immunity with respect to ‘governmental function,’ i.e., whether the individual was performing primarily discretionary activities that were of the essence to government.”[7]

The analysis further continued that the 1986 legislation

would define governmental function as it was defined in Ross,[8] and would eliminate the discretionary-ministerial distinction, providing expressly that “without regard to the discretionary or ministerial nature of the conduct in question” (emphasis added), a governmental employee would be immune if:

(a)He or she is acting or reasonably believes he or she is acting within the scope of his or her authority.

(b)The governmental agency is engaged in the exercise or discharge of a governmental function.

(c)The officer’s, employee’s, member’s, or volunteer’s conduct does not amount to gross negligence that is the proximate cause of the injury or damage. As used in this subdivision, “gross negligence” means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results. [MCL 691.1407(2); MSA 3.996(107)(2).]

Despite the clear legislative decision, following a careful analysis of Ross, and earlier decisions of this Court,[9] to abrogate, except for the highest officers,

individual officer and employee immunity from tort liability based on either governmental function or the discretionary-decisional nature of the activity, the majority reinstates governmental immunity by substituting “policy” decision for “discretionary” decision.[10] That policy decisions and discretionary decisions are one and the same appears from the following, cited by the lead opinion:

Because of the unusual and extraordinary nature of policy work it is unfair to allow “a jury of laymen with the benefit of 20/20 hindsight to second-guess the exercise of a policeman’s discretionary professional duty.”

The concurring-dissenting opinion similarly states that the public-duty doctrine recognizes that police officers and their departments must make discretionary or policy decisions to carry out the duties imposed on them. The opinion also similarly expresses the author’s and signer’s belief that the “tort system is ill-equipped to second-guess a discretionary decision….”[12] Still later: “recognition that there are situations in which discretionary or policy decisions are no longer at issue….” Id. Still later: “a policy or discretionary consideration”; “there is no longer at issue a generalized discretionary or policy decision”; “the police officer faces a ministerial obligation to perform his police officer’s duty….”[13]

IV

It is clear that the majority is substituting its belief that police officers, because of the dangerous character of their work—adverted to in the Zavala segment of Ross (see text accompanying n 25), of which the Legislature, in its careful review of Ross, also became aware—should be immune because they are confronted with difficult decisional choices.

The Legislature was fully aware that police officers are engaged in dangerous work and are called upon to make difficult choices, but decided nevertheless to eliminate the discretionary-decisional (policy)/ministerial distinction, and

to hold governmental officers and employees, except those at the highest levels, subject to liability on the basis of gross negligence, defined as reckless conduct.

The lead opinion compounds its failure to comply with the legislative directive, and the substitution of its policy choices for the legislative policy choice that no governmental employees including police officers—except those at the highest level of government—should be immune because they are called upon to make difficult policy decisions, but rather should be subject to liability for gross negligence, defined as reckless conduct, by stating that no liability arises because the defendant officers owed no duty to the plaintiff’s decedent.

The lead opinion asserts that no duty arises under state statutes because, in order to be subject to liability in tort, the duty must be expressed in terms of tort liability. Since only rarely does a statute expressly provide for tort liability, the lead opinion could stop there and direct that plaintiff’s complaint be dismissed. There is no need to incorporate the public-duty or special relationship doctrines for police officers, and potentially for other governmental employees.

V

The majority states that “the public-duty doctrine is a doctrine of tort law.”[14] Whether labeled a doctrine of tort law, or a doctrine of governmental immunity, or a revelation, it is a common-law creation of this Court that provides police

officers with de facto immunity.

The statute sets July 1, 1965, as the date as of which common-law immunity is to be determined.[15] If this Court were free to continue to engage in so-called common-law development of tort law—for governmental liability and immunity purposes only—plaintiffs might someday argue for this Court to readopt its position in Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976), where this Court abrogated common-law immunity. Section 7(1) indicates the Legislature’s intent to halt common-law development after July1, 1965. The majority assumes the power to create another layer of immunity, in the guise of a tort law doctrine, for which there was no precedent in 1965.[16]

The legislative intent expressed in subsection 7(1) is clear: the courts are not to continue to write governmental immunity law, whether under one label or another.

The signers of the lead opinion err in asserting that 1986 PA 175 “is consistent with” their expansion of governmental immunity.[17] The lead opinion’s error is highlighted in its footnote 9, where it states that §7(1) would actually compel this Court to recognize the doctrine “to the extent that the doctrine shields the state from

liability.” The 1986 act supplanted Ross and other decisions after July 1, 1965. The public-duty doctrine had not been adopted in any reported appellate judicial opinion in this state before July 1, 1965. Subsection 7(1) is not a mandate to this Court to adopt all mechanisms that shield the state from liability.

Before the 1986 amendments, Ross established the common-law liability of lower level governmental employees by providing immunity for all acts that were discretionary-decisional, while providing for liability when a ministerial-operational function was performed negligently.[18] The 1986 legislation changed the law of immunity by increasing the immunity of lower level employees for ministerial acts, allowing liability only when the conduct constituted gross negligence, rather than simple negligence. At the same time, however, the act decreased immunity by allowing liability to attach for grossly negligent discretionary-decisional actions, actions that had previously been completely immune from liability (absent exceptions not relevant here, such as intentionally tortious acts). This is the only reading of 1986 PA 175 that gives full effect to the abolition of the discretionary/ministerial distinction and the establishment of gross negligence as the standard of care.[19]

The lead opinion argues “that the dangerous work environment inherent in police activities is a counterbalancing concern” when deciding whether the public-duty doctrine should be adopted.[20] This is the same reason this Court advanced in the Zavala segment of Ross to justify insulating the officers involved on the basis of the discretionary nature of their inaction.[21]

VI

The lead opinion states that the question presented is whether “the public-duty doctrine should still be recognized in Michigan,” and “conclude[s] that the public-duty doctrine remains valid in Michigan.”[22] (Emphasis added.) The concurring-dissenting opinion similarly asserts that the public-duty doctrine “should be continued.”[23] (Emphasis added.) When so asserting, neither opinion discusses prior

Michigan case law, nor does either opinion state when, before the 1986 legislation was enacted, the public-duty doctrine was adopted.[24]

A

Ross was one of nine cases consolidated on appeal, decided in one opinion entitled Ross v Consumers Power Co (On Rehearing). In one of the cases, Zavala v Zinser, 123 Mich App 352; 333 NW2d 278 (1983), a divided Court of Appeals dismissed an action against police officers on the basis of the public-duty doctrine.[25]

This Court expressly declined in Ross to decide whether to adopt the public-duty doctrine,[26] and ruled that summary judgment was properly granted, dismissing the action against the police officers, because the “plaintiffs merely alleged negligent performance of a discretionary-decisional act ….”[27] The Court thus predicated affirmance of the Court of Appeals decision on the discretionary-ministerial distinction, not on the public-duty doctrine.

B

The lead opinion, in holding that the public-duty doctrine applies in Michigan, quotes Justice Cooley’s description of the public-duty doctrine in his treatise on the law of torts.[28] Justice Cooley’s treatise, as edited in the 4th edition, cited one Michigan case, his opinion for the Court in Moss v Cummings, 44 Mich 359; 6 NW 843 (1880). There, a tax assessor was alleged to have undervalued property in his jurisdiction. Landowners sued for recovery of taxes they had paid on the theory that the assessor’s undervaluation was illegal and therefore any tax collection was void. This Court rejected the landowner’s claim:

The failure to perform a public duty can constitute an individual wrong only when some person can show that in the public duty was involved also a duty to himself as an individual, and that he has suffered a special and peculiar injury by reason of its nonperformance. [Id. at 360-361.]

The Court observed, however, that an action would lie for overvaluation of the property: “We have held that the collection of the tax levy might be restrained in such a case, so far, at least, as it was excessive.” Id. at 361.

Thus, if the plaintiff could show injury, such as a landowner whose property was overvalued, an action would lie even though the tax assessor’s duty was to the public at large.[29]Moss v Cummings was essentially a standing, not a

public-duty, case.

This becomes even clearer upon consideration of Raynsford v Phelps, 43 Mich 342; 5 NW 403 (1880), decided shortly before Moss v Cummings was decided. There Justice Cooley, again writing for the Court, declared that an action could be maintained against a tax collector who had negligently allowed a tax lien to attach to a parcel of real estate, forcing the mortgage holder to redeem the property at a tax sale. The mortgagee sought to collect his damages, with the tax collector arguing that he owed no duty to individuals. This Court held that an action could be maintained because there was a special injury:

It is immaterial that the duty is one primarily imposed on public grounds, and therefore primarily a duty owing to the public: the right of action springs from the fact that the private individual receives a special and peculiar injury from the neglect in performance, which it was in part the purpose of the law to protect him against.

* * *

[The plaintiff] has a right to understand that the officer is commissioned by the law to act only with due respect to the rights of individuals, and that if he acts otherwise and causes special injury, he disobeys his commission and is not within the protection the commission might otherwise give. [Id., pp 345-346 (emphasis added).]

the same persons who composed the Court when Ross was decided,[31] this Court decided Fiser v City of Ann Arbor, 417 Mich 461; 339 NW2d 413 (1983), holding that an action could be maintained against police officers for their negligence in a high speed chase that caused the suspect to crash into the plaintiff’s vehicle.[32] The Court found a specific duty under general statutes regulating police conduct on the roadways that the defendants had claimed was a “duty they owe to the public.” Id., p 470.[33]

Section 5 of the governmental tort liability act,[34] providing that governmental agencies are subject to liability for the negligent operation of a motor vehicle by an officer, agent, or employee, was involved. The Court quoted from McKay v Hargis, 351 Mich 409; 88 NW2d 456 (1958), where this Court

set out the standard by which to determine a claim of negligence on the part of a police officer. The officer’s conduct should be compared to “that care which a reasonably prudent man would exercise in the discharge of official duties of like nature under like circumstances.” [Id., p470.]

Justice Ryan, writing for three members of the Court,

concurred in remanding the case for trial, and adverted to the discretionary-ministerial distinction.[35]

VII

Within a year and a half after Ross was decided, the Legislature enacted 1986 PA 175, abolishing the discretionary-ministerial distinction relied on in Ross in affirming the dismissal of plaintiff’s action in Zavala v Zinser, and adverted to in the concurring opinion in Fiser, and carefully defined and limited the liability of governmental employees to situations where their conduct amounts to gross negligence that is the proximate cause of injury or damage, meaning “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.”[36]

A

The Legislature, in enacting 1986 PA 175, delineated the parameters of actions against government employees.

Neither the Court of Appeals nor this Court has analyzed the effect of 1986 PA 175 on Court of Appeals case law concerning the public-duty doctrine. Under the circumstance that the issue has been briefed, this Court should review 1986 PA 175 to determine if a public-duty doctrine is consistent with the 1986 amendments.

The Legislature has created a comprehensive scheme of tort liability for governmental employees, including providing immunity to employees if they meet all the criteria listed in subsections a, b, and c. (See n 36.) If these criteria are not met, the statute allows a cause of action.

The majority adds an additional prong to the test: At least in the case of police officers, and possibly others, even if they fail to meet the criteria of § 7(2), there will still be immunity if the officer’s responsibility is characterized as a duty to the public at large and the conduct alleged did not establish a judicially created and defined “special relationship” between the victim and the officer.

These additional requirements are not required to save the statute from constitutional infirmity, nor are they a

reasonable construction of the text.[37] The public-duty doctrine is a judicial creation that engrafts additional requirements inconsistent with the language chosen by the Legislature.

The reasons advanced by the majority for adopting the public-duty doctrine are policy judgments that the Legislature was able to review when it enacted § 7(2).

The Legislature has provided what it determined to be sufficient protection for all governmental employees by requiring a showing of gross negligence. If police officers require additional protection, the policy arguments contained in the majority opinion will serve them well. In a court of law, those arguments should not.

While this Court has held that exceptions to the statutory immunity are to be strictly construed, it is not this Court’s role to eliminate causes of action the Legislature has granted, nor is it our role to protect the government from suits. Our obligation is to construe the statutory provisions involved, including evaluating common-law doctrines that might or might not have been adopted before the enactment of these statutory provisions, and determine if they are consistent with the legislative enactment.[38]

B

The public-duty doctrine, as articulated by the majority in separate opinions, serves to shield the government from liability despite grossly negligent conduct by its employees, in contravention of the Legislature’s d